Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee,gerald E. Lewis, Appellant, 116 F.3d 481 (8th Cir. 1997)

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US Court of Appeals for the Eighth Circuit - 116 F.3d 481 (8th Cir. 1997) Submitted May 23, 1997. Filed June 9, 1997

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


Gerald E. Lewis appeals from the order of the District Court1  denying Lewis's 28 U.S.C. § 2255 petition. He argues that the District Court erred in holding that his ineffective assistance of counsel claim affords him no basis for relief.

After an evidentiary hearing, the District Court found this claim procedurally barred. Nevertheless, the Court considered the merits of the claim and concluded that the alleged conflict of interest was not an actual conflict and that Lewis had not shown any prejudice to his case.

We agree with the conclusions of the District Court. The court found that Lewis was aware of the alleged conflict of interest prior to his trial, yet never raised the issue until he filed the present § 2255 petition, and thus has waived the claim. Lewis having made no showing of cause or prejudice to excuse the waiver, the claim is procedurally barred. The District Court found the claim meritless in any event.

None of the District Court's findings of fact is clearly erroneous, and no error of law appears. Accordingly, the order of the District Court is

Affirmed. See 8th Cir. R. 47B.


The Honorable Michael J. Melloy, United States District Judge for the Northern District of Iowa